SOMOJIT KUMAR Vs. SRI BHASKARMOY BASU

JUDGEMENT

(1.) The application filed by the defendant-petitioner under Order 7 Rule 11(d) of the Code of Civil Procedure for rejection of the plaint was disallowed by the Civil Judge, Senior Division, 2nd Court at Howrah on the ground that since the statement made in the plaint is required to be taken into consideration and the plaint shows that the cause of action of the suit arose initially on 11th December, 1996 and subsequently on 9th November, 2008 and having regard to the fact that the plaintiff had also claimed damages, it would not be proper to exercise the power under Order 7 Rule 11(d) of the Code of Civil Procedure to reject the said claim.

(2.) Mr. Prabal Mukherjee, appearing on behalf of the petitioner submits that the expression barred by law used under Order 7 Rule 11(d) of the Code includes the law of limitation. It is a trite law. On a plain reading of the plaint, it ex facie appears that the suit is barred by limitation. The trial Court should exercise its power and jurisdiction to dismiss such suit. Mr. Mukherjee further submits that the right to claim specific performance if any was lost when the defendant refused to deliver up possession of the constructed area of the plaintiff and within a period of three years from the date of such refusal the suit should have been filed. He further submits that the plaint would not show that the time to perform the obligation under the agreement has been mutually extended and the plaintiff was fully aware of the fact that because of various breaches, the defendant is not required to deliver up possession of the said flat.

(3.) The plaintiff/opposite party on the other hand would contend that the parties have mutually extended the time of performance in view of the request of the defendant due to ailment of the father of the defendant and accordingly time to perform obligation was mutually extended and ultimately in 2008 it appeared to the plaintiff that such assurance to perform obligation by the defendant was in effect not genuine and accordingly the sad suit was instituted. The question of limitation is always a mixed question of law and fact. Whether there has been any mutual agreement between the parties to extend the period of performance of contract has to be decided at the trial of the suit. Accordingly, there is no reason to interfere with the order passed by the learned trial Judge.